Complainant,v.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 9, 2015

0120123272 (E.E.O.C. Mar. 9, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120123272

Agency No. NPS-10-0450

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 26, 2012 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seasonal Park
Ranger/Visitor Use Assistant at the Agency’s Pipestone National Monument in Pipestone,
Minnesota. Complainant began this seasonal assignment on May 9, 2010. On July 6, 2010,
Complainant met with her second-level supervisor (S2) to request a transfer to another park
because her co-workers were harassing her and making false accusations about her.
Complainant claimed that her co-workers made jokes at her expense, accused her of often
reporting back from lunch late, taunted her about her uniform, and excluded her from
discussions. S2 told Complainant that he would talk to the staff and order them to be nice to
her.

After meeting with Complainant, S2 spoke with the staff about respectful treatment and
inclusiveness. Several of Complainant’s co-workers then told him about Complainant’s rude
behavior, racist comments, insubordination, and disrespect. Two co-workers mentioned that
they had considered quitting because Complainant’s conduct created a hostile work
environment. S2 received statements from Complainant’s co-workers alleging that she stated
that they were unqualified for their jobs and were only employed based on their being
American Indian, that she made a derogatory remark about African-Americans, that she
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refused to wear her uniform, that she publicly criticized the Agency’s recruitment of minorities
and veterans, and that she displayed rude behavior towards visitors, pipestone quarriers, and
Agency staff.

On July 12, 2010, S2 met with Complainant and told her that the other staff members were
ordered to be nice to her, but that they also raised several allegations about her conduct. S2
mentioned Complainant’s refusal to wear her uniform, rude behavior towards visitors and
other staff members, and racist comments she had made about Native Americans and African
Americans. Complainant acknowledged making a racial remark, but explained that the
allegations were taken out of context. S2 met with Complainant for over two hours discussing
these issues. S2 informed Complainant that he was placing a Letter of Reprimand into her file.

On July 13, 2010, S2 consulted with the Office of Human Resources as to the proper
procedure for filing a Letter of Reprimand for Complainant. A Human Resources Specialist
advised him if Complainant’s conduct warranted discipline, she should simply be terminated.
Based on this advice, S2 began preparing paperwork for Complainant’s termination. In
addition, on July 13, 2010, Complainant went out on scheduled sick leave. On July 20, 2010,
S2 received a draft termination letter from Human Resources. Complainant returned from sick
leave on July 27, 2010, and S2 issued her the Letter of Termination that day. The Letter cited
Complainant’s rude conduct and comments and her refusal to follow uniform guidelines.

On August 28, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Caucasian) and in reprisal for prior protected EEO when:

1. On July 12, 2010, Complainant was treated differently than other employees
regarding addressing workplace concerns and disciplinary actions;

2. On July 12, 2010, Complainant was defamed, ridiculed and demeaned by other staff
and management; and

3. On July 27, 2010, Complainant was removed from her position as a Visitor Use
Assistant.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge. Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on July 26, 2012.

In the FAD, the Agency determined that Complainant had not been subjected to a hostile work
environment. The Agency determined that the alleged conduct was not sufficiently severe or
pervasive to establish a hostile work environment and that Complainant failed to show that the
alleged incidents were based on her protected classes. Even assuming that Complainant had
shown that she was subjected to a hostile work environment, the Agency found that the
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management took immediate and appropriate corrective action. The record showed that when
Complainant notified him of her belief that she was subjected to a hostile work environment,
S2 attempted to gather more details about the alleged incidents. Complainant could not
provide any substantive evidence. Nonetheless, S2 counseled Complainant’s co-workers that
they should be aware of other's sensitivities and be inclusive of Complainant. Thus, the
Agency found no basis for imputing liability to Agency management.

With respect to her termination, the Agency determined that management articulated
legitimate, nondiscriminatory reasons for its actions. S2 received statements and documented
evidence from Complainant’s co-workers, quarriers, and other Agency staff that Complainant
created a hostile work environment, was rude, refused to wear her uniform, and engaged in
inappropriate behavior by referencing her co-workers' race as the sole reason they were hired.
S2 believed that Complainant's actions merited discipline because she had engaged in several
instances of inappropriate behavior by making rude and race-related comments to her co-
workers and the public and "sarcastically" refused to wear her uniform while conducting tours.

S2 consulted with Human Resources on July 13, 2010, and was advised that termination would
be appropriate. S2 stated that he did not issue the Letter of Termination until July 27, 2010,
because Human Resources was still processing the Letter of Termination, and he wanted to
accommodate Complainant’s scheduled sick leave. The Agency concluded that Complainant
failed to show that management’s reasons for its actions were pretextual. As a result, the
Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that she sought psychological treatment because of the
harassment and false accusations. Complainant claims that S2 took action against her based on
the uncorroborated charges of her harassers, all of whom had motives to lie. Complainant
contends that she was not insubordinate and complied with uniform guidelines. Complainant
argues that her co-workers’ credibility should be questioned. Finally, Complainant contends
that S2 decided to terminate her after he learned that she had contacted the EEO Counselor.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
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there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16. 1998); 29 C.F.R. § 1604.11. Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of [Complainant's]
employment and create an abusive working environment.” Harris, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris

).
Here, Complainant alleged incidents of what she believed to be discriminatory and retaliatory
harassment, including that her co-workers defamed, ridiculed, and demeaned her; and she was
subsequently removed from her position. The Commission finds that Complainant has not
shown that any of the alleged incidents were unlawfully motivated.

More specifically, as to her interactions with co-workers and management’s response, S2
stated that after Complainant met with him to complain of her treatment by co-workers, he met
with staff members to look into her concerns. ROI, at 122. S2 directed the staff members to
be more inclusive and sensitive to Complainant’s needs. Id. at 118. S2 noted that
Complainant did not mention her belief that her co-workers’ conduct was based on her race at
that point. Id. at 117. S2 affirmed that during meetings with the staff, they informed him of
instances of Complainant’s discriminatory and harassing conduct, including comments that the
only reason they had their jobs was because they were American Indian. Id. at 118. Two
employees stated that they had considered quitting because of Complainant’s comments and
rude behavior. Id. at 118-19. Further, S2 noted Complainant’s refusal to follow uniform
guidelines. Id

. at 118-19.
S2 met with Complainant to discuss these issues and Complainant did not initially deny making
any racial comments, but claimed that her comments were taken out of context, misunderstood,
or being twisted against her. Id. at 120-21. S2 stated that Complainant mentioned to him for
the first time that she believed that there was a “conspiracy” to get her because of her race.
Id. at 117. S2 affirmed, however, that Complainant was unable to identify any specific
incident or comment to support that belief. Id. S2 then informed Complainant that he would
place a Letter of Reprimand in her personnel file based on statements from her co-workers
documenting her rude behavior, discriminatory comments, and insubordination. Id

. at 122.
The record is clear that Complainant had a contentious relationship with some of her co-
workers; however, the Commission notes that Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Serv., Inc.

, 523 U.S. 75, 81 (1998). The
record simply does not show that the conduct at issue was based on animus towards
Complainant's protected classes.
Finally, as to her termination, S2 stated that he consulted with Human Resources on July 13,
2010, about disciplining Complainant. ROI, at 118. After reviewing the documentation, the
Human Resources Specialist recommended to S2 that Complainant be terminated. Id. The
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Human Resources Specialist sent S2 a draft termination letter, and S2 created the final Letter
of Termination effective July 27, 2010, to accommodate Complainant’s approved sick leave.
Id. at 118. S2 issued the Letter of Termination based on Complainant’s inappropriate
comments to her co-workers, rude behavior to other Agency staff, and her failure to follow
uniform guidelines. Id

. at 155.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an AJ's credibility determinations after a hearing; therefore, the Commission can only evaluate
the facts based on the weight of the evidence presented. The Commission finds that
Complainant failed to show by a preponderance of the evidence that any of the alleged
incidents were based on her protected classes. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 9, 2015